JUDGES	MAXWELL ACJ, NETTLE, NEAVE, REDLICH and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 & 25 October and 4 November 2010
DATE OF ORDERS	13 December 2010
DATE OF JUDGMENT	3 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 157
JUDGMENT APPEALED FROM	R v Clarkson (Unreported, County Court of Victoria, Judge Campton, 2 December 2008); R v [EJA] (Unreported, County Court of Victoria, Judge Cotterell, 18 December 2009)

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CRIMINAL LAW – Sentencing – General principles – Sexual offences against children under 16 – Consent of victim no defence – Presumption of harm to child victim – Incapacity to give meaningful consent – Whether ostensible consent of child reduces gravity of offence or culpability of offender – Consent as such never mitigating – Sentencing court to examine circumstances in which consent given – Consent as reflecting relationship between offender and victim – Relevance of age difference, power imbalance, abuse of position of trust or authority – Scope for rebuttal of presumption of harm – Crimes Act 1958 (Vic) ss 45, 47; Sentencing Act 1991 (Vic) s 5(2).

CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 – Indecent act with child under 16 – Sentence of 7 years with non-parole period of 4 years – Offender 41, victim 15 – Victim’s consent did not mitigate – Offender took advantage of victim – Sentence not manifestly excessive – Appeal dismissed – Crimes Act 1958 (Vic) ss 45, 47.

CRIMINAL LAW – Appeal – Sentence – Indecent act with child under 16 – Offender 32, victim was stepdaughter aged 12 – Sentence of 2½ years with non-parole period of 18 months – Victim’s consent did not mitigate – Victim’s consensual participation emphasised offender’s breach of trust – Whether judge’s remarks created apprehension of bias – Delay – Depression – Good work record – Whether sentence manifestly excessive – Appeal dismissed – Crimes Act 1958 (Vic) s 47.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Clarkson	Ms E McKinnon	Tyler Tipping & Woods
For the Appellant EJA	Mr O P Holdenson QC with Mr T B Ashton	Jeremy Harper & Associates
Forthe Crown	Mr J D McArdle QC with Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

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MAXWELL ACJ
NETTLE JA
NEAVE JA
REDLICH JA
HARPER JA:

Summary[1]

[1]Note: a table of cases and abbreviations is attached to these reasons. The members of the bench are listed for those cases in which the consent question was considered. Cases are referred to in the body of the judgment using the abbreviated form. Footnotes give only the abbreviated case name and (where necessary) the particular page(s) or paragraph(s).

Consent is not a defence to the offence of sexual penetration of a child under the age of 16,[2] nor to the offence of committing an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clarkson v The Queen

Details

AGLC: Clarkson v The Queen [2011] VSCA 157
Case: [2011] VSCA 157
Decision Date: 3 June 2011

CaseChat Overview and Summary

The case of Clarkson v The Queen involved two appeals against sentences imposed on two separate defendants for sexual offences against children under the age of 16. The Victorian Court of Appeal considered the appeals in conjunction, addressing the principles of sentencing in such cases, particularly the role of consent and the presumption of harm to child victims. The first defendant was convicted of sexual penetration and indecent acts with a 15-year-old victim, while the second defendant was convicted of indecent acts with his 12-year-old stepdaughter. Both defendants argued that their sentences were excessive and that the victims' consent should have mitigated the severity of the punishment.

The central legal issues before the court involved the application of sentencing principles to cases where the victim is a child under 16 and the offender has taken advantage of the victim, despite any apparent consent. The court had to determine whether consent from a child victim could ever reduce the gravity of the offence or the culpability of the offender, and if so, under what circumstances. The court also needed to address whether the victim's consent could be considered in assessing the overall harm caused by the offence, and if the presumption of harm to the child victim could be rebutted based on the specific circumstances of the case.

In delivering the judgment, the Court of Appeal emphasised that consent from a child victim is never a mitigating factor in such offences, as children under 16 are incapable of giving meaningful consent. The court acknowledged that consent might reflect the relationship between the offender and the victim, including factors such as age difference, power imbalance, and abuse of a position of trust or authority. However, the court held that these factors could not reduce the culpability of the offender or the severity of the sentence. The court also found that neither sentence was manifestly excessive, taking into account the seriousness of the offences, the breach of trust, and the need for general and specific deterrence.

The Court of Appeal dismissed both appeals, affirming the original sentences imposed. The court found no grounds to suggest that the judge's remarks created an apprehension of bias and rejected the argument that the sentences were manifestly excessive. The court concluded that the sentences appropriately reflected the gravity of the offences and the need to protect children from sexual exploitation.

Orders